Davis & Anor & Cusson & Ors - [2018] FamCA 119

FAMILY COURT OF AUSTRALIA

DAVIS AND ANOR & CUSSON AND ORS

[2018] FamCA 119

FAMILY LAW – COSTS – Where the husband’s parents filed an Application in the Case seeking rental monies be paid to them and summary judgment delivered in their favour – Where consent orders made in accordance with the Response of the wife’s Trustee in bankruptcy – Where the application for summary judgment withdrawn – Where the Trustee seeks costs – Where the Trustee had made a previous offer of settlement – Where that offer was rejected – Where consent orders made in accordance with the Trustee’s offer – Where the husband’s parents are wholly unsuccessful – Where the husband’s parents’ application was misconceived – Order made for costs.

Family Law Act 1975 (Cth) ss 117

Penfold v Penfold (1980) 144 CLR 311

APPLICANTS:

Mr B Davis and Ms Davis

RESPONDENT:

Mr Cusson (Trustee in Bankruptcy)

SECOND RESPONDENT:

Ms Peterson

THIRD RESPONDENT:

Mr Davis

FILE NUMBER:

PAC

1208

2016

DATE DELIVERED:

2 March 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

16 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANTS:

Bligh Chambers

SOLICITOR FOR THE RESPONDENT:	Mercantile Legal
SOLICITOR FOR THE SECOND RESPONDENT:	Reimer Winter Williamson The Lawyers

THE THIRD RESPONDENT:

Mr Davis in person

Orders

That Mr Davis and Ms Davis pay the Trustee in Bankruptcy Mr Cusson’s costs from 12 October 2017 of and incidental to the Application in a Case filed 26 July 2017 as agreed or assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Davis and Anor & Cusson and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1208 of 2016

Mr B Davis and Ms Davis

Applicants

And

Mr Cusson (Trustee in Bankruptcy)

Respondent

And

Ms Peterson
Second Respondent

And

Mr B Davis
Third Respondent

REASONS FOR JUDGMENT

Introduction

These Reasons relate to an application for costs made by the Trustee in Bankruptcy of the wife (“the Trustee”) in property settlement proceedings. The Trustee seeks that the Third and Fourth Respondents in the substantive proceedings pay the Trustee’s costs of an unsuccessful Application in a Case brought by those parties.
The substantive proceedings relate to a parenting and property dispute between Ms Peterson (“the wife”) and Mr Davis (“the husband”) commenced by the wife in March 2016. As the wife is an undischarged bankrupt, the Trustee for the wife’s bankrupt estate is a party as are Mr B Davis and Ms Davis, the husband’s parents…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Davis & Anor & Cusson & Ors

Details

AGLC: Davis & Anor & Cusson [2018] FamCA 119
Case: [2018] FamCA 119
Decision Date: 2 March 2018

CaseChat Overview and Summary

In the matter of *Davis & Anor & Cusson & Ors*, heard before Hannam J, the dispute concerned an application filed on 26 July 2017. The parties involved were Mr Davis and Ms Davis, and the Trustee in Bankruptcy, Mr Cusson. The specific nature of the application and the underlying dispute between the parties are not detailed in the provided text, beyond the fact that it led to an order for costs.

The central legal issue before the court was the determination of costs. Specifically, the court was required to decide who should bear the costs associated with the Application in a Case filed by Mr Cusson on 26 July 2017, and from what date those costs should be payable.

Hannam J ordered that Mr Davis and Ms Davis were to pay the Trustee in Bankruptcy, Mr Cusson, his costs of and incidental to the Application in a Case filed on 26 July 2017. These costs were to be paid from 12 October 2017, and were to be either as agreed between the parties or as assessed by the court.

Orders

Orders of the court

That Mr Davis and Ms Davis pay the Trustee in Bankruptcy Mr Cusson’s costs from 12 October 2017 of and incidental to the Application in a Case filed 26 July 2017 as agreed or assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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